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FMLA and ADA: The Brad and Angelina of Employment Law

by: Krista J. SterkenFoley & Lardner LLP - Madison Office

February 27, 2014

Previously published on February 24, 2014

An employee comes to your human resources department to request Family and Medical Leave Act (“FMLA”) leave for an upcoming surgery to address his longstanding back pain, which has caused him increasing difficulties at work. You determine that the employee is eligible for FMLA leave ¿ he worked at least 1,250 hours over the past year and his medical condition will require a period of hospitalization, which makes it a “serious health condition” qualifying for FMLA protections. Once he has submitted a completed medical certification, you grant the employee’s FMLA request and provide him with an FMLA designation notice. Are you done? Not necessarily.

When an employee requests FMLA leave for his own serious health condition, an employer may also want to consider beginning the interactive process required by the Americans with Disabilities Act (“ADA”) to evaluate whether the employee is disabled and may require a reasonable accommodation separate and apart from leave under the FMLA. This is particularly true when an employee indicates that his condition may impact his work performance beyond his need for FMLA leave. To begin the interactive process, the employer may want to consider:

Discussing with the employee, and potentially the employee’s medical provider, information regarding his diagnosis, prognosis, and potential work restrictions upon his return to work;

Asking the employee to identify his doctor and tell the employee that it will send a letter to that doctor seeking this information; and

Explaining that it is the employee’s responsibility to ensure that his doctor provides this information in a timely manner.

After having this conversation with the employer, the employer could also:

Send a letter, with the employee’s knowledge, to the employee’s doctor asking for his diagnosis, prognosis, and any potential limitations that would prevent him from meeting the requirements of his position upon his return to work;

Enclose a copy of the employee’s position description to allow the doctor to evaluate whether the employee’s condition will prevent him from meeting the requirements of his position when he concludes his leave; and

Send a copy of this letter to the employee and retain a copy in the employee’s medical file.

Once the employer receives the doctor’s response, it should work with the employee to determine whether, at the conclusion of the leave, the employee has a disability requiring accommodation and if so, evaluate with the employee whether an accommodation exists and whether that accommodation is reasonable.

Beginning the interactive process at the time of an FMLA leave request can be helpful for two reasons. First, the ADA requires an employer to work with an employee to evaluate the need for an accommodation once it is on notice that the employee may have a qualifying disability that may impact his ability to meet the requirements of his position. The information given by an employee in the context of an FMLA leave request may be sufficient to provide this notice. Second, it is not uncommon for an employee to either return to work with significant restrictions or require additional time off of work after exhausting his FMLA leave. Whether the employee qualifies for ADA protections impacts an employer’s options in responding to these situations. If an employer has already determined that the employee’s condition does not qualify as a disability ¿ which can be a risky proposition ¿ it may deny any requested accommodations and discipline/terminate an employee that does not return to work after exhausting his FMLA leave. By contrast, a disabled employee is entitled to a reasonable accommodation, which may include additional time away from work in excess of his FMLA entitlement. By beginning the ADA interactive process at the outset of an FMLA leave, an employer may avoid delays in addressing medical limitations that persist after the employee’s FMLA leave has been exhausted.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.